55 results
CHAPTER XVIII - RECEIVING STOLEN PROPERTY
- from BOOK II - DEFINITIONS OF PARTICULAR CRIMES
- J. W. Cecil Turner
-
- Book:
- Kenny's Outlines of Criminal Law
- Published online:
- 05 June 2016
- Print publication:
- 19 September 2013, pp 355-358
-
- Chapter
- Export citation
-
Summary
Section I. At Common Law and by Statute
At common law the receiving of stolen goods with knowledge that they had been stolen was a misdemeanour. It was necessary that a larceny of the goods should have been committed; yet the receiver was not indictable at common law as an accessory after the fact to this larceny (unless the receiving in some way assisted the thief's escape from justice), because it was not the thief, but only the goods, that he received. Subsequently, however, by various statutes (whose provisions are now comprised in the Larceny Act, 1916, s. 33 (1)), the scope of the offence was greatly widened, by extending it to cases where the original act of dishonesty was a stealing or obtaining of the property ‘in any way whatsoever under circumstances which amounted to felony or misdemeanour’. As to receiving the proceeds of a won-indictable theft, see the Act of 1861, post, 363.
The offence thus consists in ‘receiving stolen goods, knowing them to have been stolen’. This involves three points for consideration:
(a) the receiving, (b) the thing received, (c) the guilty knowledge.
(a) The receiving
There must have been some act of ‘receiving’, which involves a change of possession. It must therefore be shown that the prisoner took the goods into his possession, actual or constructive. This cannot be the case so long as the original thief retains exclusive possession of them (though there may well be an amicable joint possession by a receiver and a thief together). But, as in all cases of possession, a person may ‘ receive’ without himself taking part in any physical act of receipt. Accordingly if stolen goods are delivered to the prisoner's servant, or wife, in his absence, but he afterwards does some act that implies an acceptance of the goods—as by removing them to some other part of his premises, or by striking a bargain about them with the thief—he will then (though not till then) become himself a ‘receiver’ of them.
CHAPTER XVII - FALSE PRETENCES
- from BOOK II - DEFINITIONS OF PARTICULAR CRIMES
- J. W. Cecil Turner
-
- Book:
- Kenny's Outlines of Criminal Law
- Published online:
- 05 June 2016
- Print publication:
- 19 September 2013, pp 342-354
-
- Chapter
- Export citation
-
Summary
Section I. The Larceny Act, 1916, Section 32
Section 32 of the Larceny Act provides that:
Every person who by any false pretence
(1) with intent to defraud, obtains from any other person any chattel, money, or valuable security, or causes or procures any money to be paid, or any chattel or valuable security to be delivered, to himself or to any other person for the use or benefit or on account of himself or any other person; or
(2) with intent to defraud or injure any other person, fraudulently causes or induces any other person
(a) to execute, make, accept, endorse, or destroy the whole or any part of any valuable security; or
(b) to write, impress, or affix his name or the name of any other person, or the seal of any body corporate or society, upon any paper or parchment in order that the same may be afterwards made or converted into, or used or dealt with as, a valuable security;
shall be guilty of a misdemeanour and on conviction thereof liable to imprisonment for any term not exceeding five years.
Under this provision five points arise for consideration: (a) the subject-matter of the crime, (b) the right obtained over that thing, (c) the pretence, (d) its effect, and (e) the intent.
(a) THE SUBJECT-MATTER
Although the statutes which have regulated this crime have nowhere so stated, it has always been held that the words ‘chattel, money, or valuable security’ do not include things which at common law were not the subject of larceny. Thus since, as we have seen, a ‘difference in value’ as such cannot be stolen, it cannot be obtained by false pretences. Accordingly the section does not cover a fraudulent obtaining of real property, or of anything ‘savouring of the realty’, or of a dog (however valuable). Yet it has been held that a railway ticket, although it is evidence of a chose in action, may be the subject of an indictment for obtaining it by false pretences since it is a chattel.
Preface to the Sixteenth Edition
-
- By J. W. Cecil Turner, Fellow of Trinity Hall, Cambridge
- J. W. Cecil Turner
-
- Book:
- Kenny's Outlines of Criminal Law
- Published online:
- 05 June 2016
- Print publication:
- 19 September 2013, pp v-vi
-
- Chapter
- Export citation
-
Summary
Kenny's Outlines of Criminal Law first appeared in 1902. The author declared that it was his aim to make the study of criminal law attractive to the reader, not only by supplying him with illustrative examples which might give vividness and reality to abstract legal principles, but also by tracing its connexion with the past, so as to explain the historical anomalies with which the law was still encumbered. His further purpose was to suggest the most important controversies, psychological, social and judicial, that the law of crime seemed likely to arouse in the future. Kenny's hopes and prophecies were abundantly fulfilled, and he lived to prepare twelve more editions, the last of which appeared in 1929. The book was founded on the course of lectures which the author had delivered for some twenty-five years before he wrote it and its immediate and enduring success could have been no surprise to anyone who had been his pupil. For Kenny had the faculty not only of looking widely but also of looking forward; he welcomed new ideas but, being a man with great practical experience in the law and possessed of shrewd common sense, he appraised them wisely. This broad and sane outlook, coupled with his remarkable oratorical gift of clear and charming presentation, enabled him to render work on criminal law an educational exercise as well as a vocational training. It was found, moreover, to be an attractive exercise; for it was never Kenny's fate to watch his audience dwindle as the academical year wore on. Yet the outstanding characteristic of Kenny's work which has won its most lasting distinction is that he saw the connexion between criminal law and all the social sciences more clearly than any English legal writer before him had done: he thus laid the foundation for the conception of criminal science as one composite subject of which criminal law is a part. For one who had the good luck as an undergraduate to be taught by Courtney Stanhope Kenny and subsequently, as a colleague, to enjoy his courteous friends ship and wise advice, it is an honour to be entrusted with the preparation of a new edition of his famous book.
CHAPTER XVI - CHEATS PUNISHABLE AT COMMON LAW
- from BOOK II - DEFINITIONS OF PARTICULAR CRIMES
- J. W. Cecil Turner
-
- Book:
- Kenny's Outlines of Criminal Law
- Published online:
- 05 June 2016
- Print publication:
- 19 September 2013, pp 339-341
-
- Chapter
- Export citation
-
Summary
Section I. Frauds
(a) Practised upon the individual
As we have seen, the common law, in giving its protection to the private citizen as such, regarded as felonious those acts of dishonesty which took the form of a physical interference with the property itself, against the will of its owner. For frauds of a personal character whereby a man was induced by deceit or lies to part with his ownership of money or of other property the common law provided no criminal punishment; as, for example, where a man tricked another by some sleight of hand or by some false statement about the material or quality of some article which he was selling. Thus, when A was charged with obtaining money from B by falsely stating that C had sent him to receive it for his use, Holt, C.J., said: ‘Shall we indict one for making a fool of another?’ and bade the prosecutor to have recourse to a civil action.
(b) Practised upon the public
Where, however, the dishonest activity was of a sort which aimed at defrauding such members of the public as a whole who might come within its reach, then because of its generally injurious character it was treated by the common law as a crime (although only in the degree of a misdemeanour), in any instance in which any particular member of the public suffered by it. False statements without more were held not to be enough, and some misleading device in a permanent form was needed, such as false weights, measures, trade-marks, loaded dice, marked playing cards or even unwholesome food. Thus in the case mentioned in the preceding paragrapb. the court stated that it was ‘not indictable unless he came with false tokens; playing with false dice is, for that is such a cheat as a person of ordinary capacity cannot discover’.
CHAPTER XX - FORGERY
- from BOOK II - DEFINITIONS OF PARTICULAR CRIMES
- J. W. Cecil Turner
-
- Book:
- Kenny's Outlines of Criminal Law
- Published online:
- 05 June 2016
- Print publication:
- 19 September 2013, pp 366-381
-
- Chapter
- Export citation
-
Summary
Section I. History
ROYAL SEALS AND CHARTERS FIRST PROTECTED
The verb ‘to forge’, which originally meant simply ‘to make’, acquired, even before the time of Shakespeare, the special sense of making deceitfully. Yet the crime of forging ordinary (as distinct from sealed, or official) writings is not very ancient in England. In this country the felony of forgery first appeared in connexion with the falsification of royal seals, and it was closely linked with coinage offences and with treason; it was indeed at first regarded as a species of treason. When, however, at an early period not only royal charters but also private charters came to be protected, forgery could be regarded as a distinct crime although it did not yet cover ordinary writings which were not under seal.
Unsealed writings of a private sort did not in those days create the important legal interests which the much later expansion of commerce has made common, so that there was little need for a wider law. At the beginning of the fifteenth century a statute gave a civil remedy to persons who had been defrauded through the falsification of deeds relating to real property. This law was extended in 1562; but still the protected writings had, in all cases save that of testaments, to be under seal. Coke made no allusion to a crime of forging ordinary writings, and Hale said nothing of the existence of forgery at common law either as a felony or a misdemeanour.
PROTECTION EXTENDED TO PRIVATE UNSEALED WRITINGS
The law of forgery as it is now understood seems indeed to have begun in 1727 when the judges, by a bold interpretation, declared that the use of the word ‘writings’ in the preamble of the above mentioned statute of Elizabeth covered the forging of a writing which was not sealed; and they stated that such a falsification was indictable as a forgery at common law, even before the enactment of Elizabeth. Yet, so much as fifty years later, Hawkins discussed the law of this matter in hesitating terms.
CHAPTER XXXII - ORDINARY PROCEDURE
- from BOOK IV - CRIMINAL PROCEDURE
- J. W. Cecil Turner
-
- Book:
- Kenny's Outlines of Criminal Law
- Published online:
- 05 June 2016
- Print publication:
- 19 September 2013, pp 560-575
-
- Chapter
- Export citation
-
Summary
PRELIMINARY STEPS
Trial by jury. Ten possible stages. From the modern and purely statutory form of procedure which prevails in courts of summary jurisdiction, we now pass to the more ancient form which prevails in those courts where offenders are tried in the common law manner, that is to say, by a jury. In this procedure—still styled ‘ordinary’, though now far rarer than the summary—there are ten possible stages which call for explanation. These are (1) information; (2) arrest; (3) commitment for trial; (4) prosecution, i.e. accusation; (5) arraignment; (6) plea and issue; (7) trial and verdict; (8) judgment; (9) reversal of judgment; (10) reprieve or pardon.
Early methods of detection and arrest. During the greater portion of the history of English criminal law its provisions for the detection and arrest of offenders were very defective. In the earliest times, indeed, excellent provision had been made by the system of frankpledge. A frankpledge was a group of adult males—sometimes all those within a particular township, sometimes only a ‘tithing’ or group of ten, selected individually—who were liable to amercement if they did not surrender to justice any one of their number who committed a crime (each individual in the group is sometimes also called a ‘frankpledge’). This institution apparently only existed south of the Humber; but probably arose there as far back as the Anglo-Saxon period. From at least the time of Henry I a ‘view of frank-pledge’ was taken by the sheriff periodically, at which the above-mentioned amercements were collected. After the frankpledges fell into decay in the fourteenth century, England possessed no effective machinery for arresting criminals or for preventing the commission of crime, until the creation, by Sir Robert Peel's energy, of the modern police force. Even in London, as stated in the preamble to his Act, ‘the local establishments of nightly watch and nightly police have been found inadequate to the prevention and detection of crime, by reason of the frequent unfitness of the individuals employed, the insufficiency of their number, the limited sphere of their authority, and their want of connexion and co-operation with each other’.
CHAPTER XXII - CONSPIRACY AND INDUSTRIAL DISPUTES
- from BOOK II - DEFINITIONS OF PARTICULAR CRIMES
- J. W. Cecil Turner
-
- Book:
- Kenny's Outlines of Criminal Law
- Published online:
- 05 June 2016
- Print publication:
- 19 September 2013, pp 412-420
-
- Chapter
- Export citation
-
Summary
Section I. Conspiracy
DEFINITION
In English law conspiracy first began as an agreement of persons who combined to carry on legal proceedings in a vexatious or improper way. It was for a long time closely allied to attempts and was indeed often regarded as one form of attempt to commit a wrong. However, in modern times conspiracy has become a separate crime and is defined as the agreement of two or more persons to effect any unlawful purpose, whether as their ultimate aim or only as a means to it. This definition presents four points for notice: (a) the actus reus, (b) the persons agreeing, (c) the purpose agreed upon, (d) the metis tea.
Actus reus. Agreement
It must not be supposed that conspiracy is a purely mental crime, consisting in the concurrence of the intentions of the parties. Here as everywhere in our law, bare intention is no crime. ‘Agreement’, as Lord Chelmsford puts it clearly, ‘is an act in advancement of the intention which each person has conceived in his mind.’ It is not mere intention, but the announcement and acceptance of intentions. A distinction is to be drawn between the conspiracy and the overt acts which may be given as evidence of the conspiracy. Bodily movement, by word or gesture, is indispensable to effect it. In order of time, this precedes the act agreed upon. But the fact of the parties having come to such an arrangement suffices to constitute a conspiracy. Hence it is not necessary to show that they went on to commit some overt act towards carrying it out, though this (and also some consequent damage) would be necessary in an action of tort for conspiracy. It follows that a person may be convicted of a conspiracy as soon as it has been formed, and before any overt act to carry out the agreed purpose has been committed.
CHAPTER XIX - OTHER OFFENCES INVOLVING FRAUD
- from BOOK II - DEFINITIONS OF PARTICULAR CRIMES
- J. W. Cecil Turner
-
- Book:
- Kenny's Outlines of Criminal Law
- Published online:
- 05 June 2016
- Print publication:
- 19 September 2013, pp 359-365
-
- Chapter
- Export citation
-
Summary
Section I. Statutory Frauds
CORRUPT REWARDS
By section 34 of the Larceny Act, 1916,
Every person who corruptly takes any money or reward, directly or indirectly, under pretence or upon account of helping any person to recover any property which has, under circumstances which amount to felony or misdemeanour, been stolen or obtained in any way whatsoever, or received, shall (unless he has used all due diligence to cause the offender to be brought to trial for the same) be guilty of felony and on conviction thereof liable to [imprisonment] for any term not exceeding seven years.
The rule contained in this section is derived from earlier statutes and is said to have originated as a result of the activities of a celebrated criminal in the eighteenth century, Jonathan Wild, who carried on a notorious trade in the collection of such rewards.
Any person who publicly advertises a reward for the return of any property which has been stolen or lost with an intimation, direct or indirect, that no questions will be asked (or publishes such an advertisement) is liable on summary conviction to a fine not exceeding one hundred pounds.
OBTAINING CREDIT BY FRAUD
By virtue of the Debtors Act, 1869, any person who in incurring any debt or liability has obtained credit under false pretences, or by means of any other fraud, is guilty of a misdemeanour and liable to be imprisoned for any time not exceeding one year. As we have seen this provision reaches some cases of dishonesty which cannot be brought within section 32 of the Larceny Act, 1916, for example because the false representation may relate to the future. It has been decided that ‘debt’ means a debt which can be recovered by civil action, and therefore a betting debt, since it is void under the Gaming Act, 1845, is not within this section. The credit must have been obtained for the offender himself and it is not enough that he has obtained it for some other person. The meaning of the word ‘credit’ in this connexion is discussed in Appendix I, post.
CHAPTER XIV - EMBEZZLEMENT
- from BOOK II - DEFINITIONS OF PARTICULAR CRIMES
- J. W. Cecil Turner
-
- Book:
- Kenny's Outlines of Criminal Law
- Published online:
- 05 June 2016
- Print publication:
- 19 September 2013, pp 320-330
-
- Chapter
- Export citation
-
Summary
Section I. History and Definition
As already mentioned, the criminal liability of servants was extended in 1529 (21 Hen. VIII, c. 7) to cases in which their master had delivered (not into their mere custody but) into their full ‘legal’ possession any valuable goods to be kept by them as bailees for him. The ‘imbezilment’ of such goods by them was made a felony. But where money or goods were received by a servant into his own legal possession on his master's account, not from that master himself but from some third person, who intended to part with the ownership of them (either to go to the man's known master or to such person as might be entitled to receive it) the statute did not apply. In such a case the deliveror has ceased to have any possession of the goods, while, on the other hand, they have not yet reached the possession of the master; and they are thus for the time being in the servant's own possession. There they will continue until he puts them into his master's possession or otherwise disposes of them in accordance with the instructions to him by his master. Until then he accordingly cannot commit larceny of them. (Yet, inconsistently, it is held by our civil courts that this delivery to a servant by a stranger gives the master such a possession, as against third parties, as entitles him to sue anyone for damages who commits a trespass to the goods, even whilst they are still in die servant's hands.) Accordingly if, for example, a bank cashier, or a shop assistant, on receiving money into his hands from a customer, does not put it into the till, but pockets it and uses it for his own purposes, he commits no larceny. It has not reached the possession of the master; he therefore cannot legally be said to have ‘taken’ it from the master.
Kenny's Outlines of Criminal Law
- J. W. Cecil Turner
-
- Published online:
- 05 June 2016
- Print publication:
- 19 September 2013
-
First published in 1962, as the eighteenth edition of a 1902 original, this book formed part of an ongoing series of elementary legal guides. The text was not intended to be a work on criminal jurisprudence, but rather to assist students to such an understanding of the rules of criminal law as would enable them to form a clear idea of the practical task confronting the prosecution and defence in the trials of specific people. This book will be of value to anyone with an interest in law and legal history.
CHAPTER XXIII - PERJURY AND OTHER OFFENCES AGAINST PUBLIC JUSTICE
- from BOOK II - DEFINITIONS OF PARTICULAR CRIMES
- J. W. Cecil Turner
-
- Book:
- Kenny's Outlines of Criminal Law
- Published online:
- 05 June 2016
- Print publication:
- 19 September 2013, pp 421-428
-
- Chapter
- Export citation
-
Summary
Section I. Perjury
HISTORY
Early limitations. In Anglo-Saxon legal procedure, judicial oaths played a very important part, being taken both by jurors and by compurgators. Both these classes were punishable for any perjuries they uttered. But the functions of the modern witness had not yet been differentiated from those of the juror; and perjury by witnesses was consequently an unknown crime. And when, in the fourteenth century, witnesses began to be brought in to inform the jury, perjury by them was not made a punishable offence. Hence it became a maxim that the law regarded every witness's oath as true. Even the ecclesiastical courts, though treating breaches of faith in general as matters within their jurisdiction, took no notice of the grave breach of faith involved in giving false witness. But, before the end of the fifteenth century, the Star Chamber sometimes interposed to punish perjuries. And, in the sixteenth century, Parliament itself began to interfere with the immunity of witnesses, dealing in 1540 with subornation of perjury, and in 1562 with perjury itself. But for each of these offences it imposed only a pecuniary penalty, recoverable civilly by a penal action. Finally, however, the Star Chamber, in 1613, declared perjury by a witness to be punishable at common law.
Subsequent extension. The offence thus created was one which could only be committed in a judicial proceeding and by a witness who gave false evidence on oath. But the law gradually came to assume a far more complicated form. Parliament specified various matters which were not judicial proceedings, yet in which the telling a falsehood upon oath was to be a perjury. Again, some classes of witnesses came to be allowed by statute to give evidence in judicial proceedings on mere affirmation, without any oath; and falsehood by them, though no perjury, was made as severely punishable as if it were one.
CHAPTER VII - HOMICIDE
- from BOOK II - DEFINITIONS OF PARTICULAR CRIMES
- J. W. Cecil Turner
-
- Book:
- Kenny's Outlines of Criminal Law
- Published online:
- 05 June 2016
- Print publication:
- 19 September 2013, pp 125-190
-
- Chapter
- Export citation
-
Summary
Section I. Introductory
Writers for centuries past have found it convenient to classify crimes by reference to the various kinds of interests which the respective offences violate. Of the arrangements of the subject-matter which have been made upon this basis the clearest is that of Blackstone's later editor, Serjeant Stephen, who divided them simply into (1) offences against the persons of individuals, (2) offences against the property of individuals, (3) offences against public rights.
Following this last arrangement, our list of crimes must begin with those which affect the security of men's persons—employing here that much abused word, not in its ancient technical legal sense of ‘a subject of rights and duties’, but in the modern meaning of ‘the living body of a human being’. Of all such offences homicide attracts the most attention and, to every student of criminal law, is a crime peculiarly instructive. For it is, as we have seen, in connexion with homicide that metis rea, the basic element of responsibility in our modern system, has been developed.
CLASSIFICATION
We have already had occasion to indicate the uncertainty which besets most important principles at the present time in the law of homicide, owing, as we have observed, to a variety of factors which have operated during the peculiar growth of the common law. In all periods English law has regarded the killing of a human being as a deed of the utmost gravity; but many, if gradual, changes have occurred since the early days when the simple fact that a death could be traced to a man's active conduct involved him in a liability of which no degrees were recognized and for which hardly any excuses were admitted. Nowadays it is the subjective element of mens rea which is of the first importance, imperfectly defined though it still is, and this has brought about the division of homicide into several grades, which must be described and defined separately. These are justifiable homicide, excusable homicide, murder, suicide, manslaughter, infanticide, child destruction.
It is to the working of the social conscience of the English people that all these modifications are due.
BOOK I - GENERAL CONSIDERATIONS
- J. W. Cecil Turner
-
- Book:
- Kenny's Outlines of Criminal Law
- Published online:
- 05 June 2016
- Print publication:
- 19 September 2013, pp -
-
- Chapter
- Export citation
CHAPTER XI - OFFENCES AGAINST PROPERTY
- from BOOK II - DEFINITIONS OF PARTICULAR CRIMES
- J. W. Cecil Turner
-
- Book:
- Kenny's Outlines of Criminal Law
- Published online:
- 05 June 2016
- Print publication:
- 19 September 2013, pp 229-243
-
- Chapter
- Export citation
-
Summary
Section I. Malicious Damage
GENERAL PRINCIPLES. ‘UNLAWFULLY AND MALICIOUSLY’
In early English law attacks upon property which were not made for purposes of gain to the offender but which were inspired by feelings of vindictiveness, or even by a reckless impulse to do damage, were almost entirely left to be remedied by the civil action of trespass. So that, at common law, the only kind of damage to property to rank as a criminal offence was arson, which consisted of the wilful and malicious burning of a dwelling-house. This crime was extended by early statutes to the burning of other buildings and tilings, and thereafter the legislature by a series of enactments steadily widened the protection which the criminal law could give to property of a great variety of kinds. During this development the draftsmen of the statutes in question formed the practice of describing the criminal damage mostly as having been done ‘unlawfully and maliciously’, but sometimes‘ wilfully or maliciously’. It is necessary therefore, if possible, to ascertain what precise meaning is to be attached to these words.
(a) ‘Unlawfully.’ This word suggests that there may be cases in which it is not unlawful to damage another person's property, i.e. in which the damage can be justified. Of course if a man can show that he has a legal right to do the harm complained of, there is no actus retis and therefore no criminal liability. But it has been suggested that there will be no liability if he was acting in good faith under a supposed right, i.e. where the defendant honestly believed he had a legal right which in fact he did not possess.
Mistake of law is but rarely admitted as a defence in criminal proceedings although it may be expressly so provided by statute. The phrase ‘unlawfully and maliciously’ was used in most of the sections of the first statute to consolidate the law of injuries to property; which, save in one section, gave no indication that a bonajide claim of right could constitute any defence.
CHAPTER XXXIII - ORDINARY PROCEDURE
- from BOOK IV - CRIMINAL PROCEDURE
- J. W. Cecil Turner
-
- Book:
- Kenny's Outlines of Criminal Law
- Published online:
- 05 June 2016
- Print publication:
- 19 September 2013, pp 576-619
-
- Chapter
- Export citation
-
Summary
Section I. Prosecution
The process of commitment by a justice of the peace which we have described, though in actual practice it is adopted in almost every instance, is not legally essential for bringing an accused person to trial before a jury. All that is truly essential is some mode of ‘prosecution’, i.e. of formal accusation. Such an accusation may be made either by a Crown official's information, or by an indictment or in the case of murder, manslaughter or infanticide by a coroner's inquisition.
BY INFORMATION
An information is a written complaint made on behalf of the
Crown by one of its officers and filed in the Queen's Bench Division. Since such a mode of accusation dispenses with any accusing jury, and with any examination before a justice of the peace, it is only allowed in cases of misdemeanour. Since 1938 the Attorney-General is the only officer who has this right, ex officio, which he may exercise at his own discretion (but seldom does so).
BY INDICTMENT
A bill of indictment is a written accusation of crime.4 Practically every case that comes to a petty jury for trial comes on indictment. A bill of indictment may be preferred (i) when the person charged has been committed for trials Or (ii) under the direction or with the consent of a judge of the High Court,6 or (iii) in the case of perjury by order of a judge or magistrate who is of opinion that in the course of any proceeding before himself any person has been guilty of perjury. A bill of indictment may be preferred by any person and, if satisfied that any of the above three requirements has been fulfilled, the proper officer of the court before which the bill is preferred signs the bill which thereupon becomes an indictment. The judge or chairman of the court, if satisfied that any of the above three requirements has been fulfilled, may of his own morion or on the application of the prosecution direct the bill to be signed.
CHAPTER XXIX - LIMITATIONS ON CRIMINAL JURISDICTION
- from BOOK IV - CRIMINAL PROCEDURE
- J. W. Cecil Turner
-
- Book:
- Kenny's Outlines of Criminal Law
- Published online:
- 05 June 2016
- Print publication:
- 19 September 2013, pp 531-536
-
- Chapter
- Export citation
-
Summary
Section I. Introductory
Procedure is a part of adjective law. We have now discussed the substantive law of crime, and also that portion of the adjective law which regulates the evidence by which crimes are to be proved. Finally, we have to consider the remaining portion of adjective law, that which regulates the procedure by which offenders who have committed crime are brought to punishment. We may begin by mentioning some limitations upon the exercise of this procedure, and then go on to describe the various courts in which it is exercised.
Section 2. Limitation by Time
NONE AT COMMON LAW
To civil actions, lapse of time may often operate as a bar: vigilantibus, non dormientibus, jura subveniunt. But it can rarely affect a criminal prosecution. For the King could do no wrong; and consequently it was impossible that his delay in pressing his claims, whether civil or criminal, could be due to any blamable negligence. Accordingly at common law it was a rule that those claims remained unaffected by lapse of time: nullum tempus occurrit regi. And though, as regards civil claims, this kingly privilege has now been subjected to limitations by 9 Geo. Ill, c. 16, it still operates almost unimpaired in criminal prosecutions. Hence, in several noteworthy cases, offenders have been brought to justice many years after the commission of their crimes. In 1905 John Appleton received sentence of death (afterwards commuted) on his own confession of a murder committed in 1882 (The Times, 15 July 1905). The trial of Governor Wall (1802) took place nineteen years, that of Edward Shippey (1871) thirty years, and that of William Home thirty-five years, after the respective murders of which they were accused. Stephen,
indeed, mentions a prosecution in 1863 for the theft of a leaf from a parish register no less than sixty years previously.
Index
- J. W. Cecil Turner
-
- Book:
- Kenny's Outlines of Criminal Law
- Published online:
- 05 June 2016
- Print publication:
- 19 September 2013, pp 643-658
-
- Chapter
- Export citation
CHAPTER X - CRIMINAL LIBEL
- from BOOK II - DEFINITIONS OF PARTICULAR CRIMES
- J. W. Cecil Turner
-
- Book:
- Kenny's Outlines of Criminal Law
- Published online:
- 05 June 2016
- Print publication:
- 19 September 2013, pp 221-228
-
- Chapter
- Export citation
-
Summary
Section I. Private Libel usually treated as a Tort
A libel is such a writing or picture as either defames an individual (‘private’ libel) or injures religion, government or morals (‘public’ libel).
We have already seen that most crimes are also torts. But the most conspicuous illustration of this is afforded by the defamatory, or private, libel. It is a crime which not only is a tort, but is constantly treated as such in actual practice. For it is only a misdemeanour, and accordingly not affected by the rule which delayed, and therefore usually frustrated, civil proceedings for crimes that were of the degree of felonies. And again, it is a crime which, unlike most others, is often committed by persons whose pecuniary means are large enough to enable them to pay whatever compensation a civil court may award. Hence libels are much more frequently followed up by civil than by criminal proceedings. And the judges have desired to see indictments for defamation restricted to those cases in which the libel is sufficiently aggravated, either by its intrinsic gravity or its public nature (e.g. libels on persons in a public position, or tending to defame persons of influence in foreign countries so as to interfere with pacific relations) or where the offensive statements are repeated by numbers of persons of small means, so that a civil action would not afford their victim any adequate remedy or means of terminating the mischief. A prosecution should not be employed in a mere squabble between two individuals. It is not however, incumbent on the prosecution to prove that the libel would have been unusually likely to provoke the wrath of the person defamed.
Section 2. Fundamental Principles Common to the Civil and Criminal Law
It is sufficient for the purposes of the present volume to indicate briefly the fundamental principles which are common to both the civil and the criminal law of libel, and then explain the distinguishing features of the latter aspect of this wrong.
Frontmatter
- J. W. Cecil Turner
-
- Book:
- Kenny's Outlines of Criminal Law
- Published online:
- 05 June 2016
- Print publication:
- 19 September 2013, pp i-iv
-
- Chapter
- Export citation
CHAPTER VIII - OFFENCES AGAINST THE PERSON THAT ARE NOT FATAL
- from BOOK II - DEFINITIONS OF PARTICULAR CRIMES
- J. W. Cecil Turner
-
- Book:
- Kenny's Outlines of Criminal Law
- Published online:
- 05 June 2016
- Print publication:
- 19 September 2013, pp 191-213
-
- Chapter
- Export citation
-
Summary
Section I. Introductory
Crimes of this class are of two main types, the sexual and the non-sexual. For a long period the former were dealt with as offences against morals and religion by the ecclesiastical courts who imposed their own punitive sanctions; this jurisdiction, though long obsolete in practice, has never been formally abolished. But the common law had no penal prohibitions of similar comprehensiveness, its criminal rules taking cognizance only of those grosser breaches of sexual morality that were rendered peculiarly odious, either by the abnormality of the form they took, or by the violence with which they were accompanied; aggravations to which the legislature subsequently added that of the tender age of the female concerned in them, or of her near consanguinity. Hence, the voluntary illicit intercourse of the sexes, even though it take the form of mercenary prostitution or of an adulterous violation of marital legal rights, furnishes no ground for a criminal indictment. Since a substantial proportion of all offences against the person which come before the courts consists of sexual crimes it is necessary that some account of these be given in this book, although it will not be possible to treat any of them in detail.
Section 2. Sexual Offences
RAPE
At common law the crime of rape consists in having carnal knowledge of a woman without her consent. Although the offence is usually effected by violence, it has been decided that rape can be committed without the use of any violence, the essential point being that the woman's free and conscious permission has not been obtained. This crime seems to have been originally punishable by death (the punishment was later varied to mutilation) and then was reduced to a trespass punishable with only two years' imprisonment; but soon afterwards it was again made a capital felony. Subsequent statutory modifications have been replaced by the Sexual Offences Act, 1956, s. 1 (1), which makes the crime a felony punishable with imprisonment for life.